D.C. v. F.R.

On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Essex County.

Approved for Publication January 23, 1996.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by BAIME, J.A.D.

The Prevention of Domestic Violence Act of 1991 (N.J.S.A. 2C:25-17 to -33) was designed to protect victims of domestic violence and to provide uniformity in prosecuting and adjudicating such claims. When the Act was originally adopted, it offered no protection to individuals subjected to violent acts by persons whom they had merely dated. In 1994, the Act was amended to cover victims of domestic violence who had engaged in a dating relationship with the offender. L. 1994, c. 93, § 1. The principal question presented in this case is whether the Act may be applied to remedy pre-amendment acts of violence having their origin in a dating relationship. We hold that the amendment substantially altered the scope of the Act by expanding the class of persons eligible for protection under it and thus should be applied only prospectively. However, we also conclude that where an act of domestic violence arising out of a dating relationship has occurred after the effective date of the amendment, the prior history of domestic violence between the parties may be considered by the trial court in determining the appropriate injunctive or monetary remedy.

I.

This case involves charges of harassment and stalking after a dating relationship between two teenagers soured. All but one of the acts of domestic violence are alleged to have occurred prior to the effective date of the amendment. We need not recount the sordid details at length. Although the proceedings were protracted and the resulting record voluminous, we recite only those facts essential to an understanding of the issues raised.

Plaintiff and defendant attended the same high school and engaged in a dating relationship for approximately thirteen months, beginning in September 1992 and ending in October 1993. Despite its length, the relationship was extremely volatile. According to plaintiff, defendant convinced her after repeated coaxing to pose for sexually explicit photographs. The photographs allegedly were taken in defendant's automobile in January 1993, when plaintiff was sixteen years old. Plaintiff also asserted that defendant promised not to show the photographs to anyone, but subsequently threatened to send copies to her parents. Based upon these threats, defendant persuaded her to engage in sexual acts and to pose for a second set of photographs, which were taken in March 1993. We need not describe these photographs in detail. Suffice it to say, two of the second set of photographs depict plaintiff engaging in fellatio. Plaintiff further contended that defendant took an additional photograph of her topless during a summer excursion to the shore in 1993. Prior to the hearing, plaintiff subpoenaed the photographs, which were subsequently admitted into evidence and are presently sealed. *fn1

Defendant admitted taking all of the photographs except the topless one, which he claimed was given to him by plaintiff. However, defendant contended that plaintiff posed willingly and that he never threatened to expose the photographs to her parents or to others. He also offered a different chronology concerning when the photographs were taken. We need not recite in detail defendant's testimony regarding these events. It is enough to say that defendant claimed the initial photographs of plaintiff in the automobile were taken in the summer of 1993, not the winter as plaintiff testified. He asserted that a close inspection of these pictures corroborated his account because a pair of bikini bottoms appears on the floorboard of the vehicle. Defendant claimed that other demonstrative evidence bolstered his description of the times and places the photographs were taken and supported his contention that plaintiff's allegations of threats and domestic violence were entirely fabricated.

It is undisputed that plaintiff continued to date defendant after the photographs were taken. Plaintiff did not end the relationship until October 21, 1993. On October 27 she gave defendant a detailed letter describing their differences. According to plaintiff, defendant persisted in his attempts to resume their relationship despite her repeated protestations.

We need not describe these incidents of harassment and stalking in detail. We merely note that defendant's alarming and sometimes bizarre behavior became increasingly threatening with each rebuff. Moreover, family and police intervention had no deterrent effect on him. Defendant persisted in his alarming conduct long after it became apparent that his efforts to renew the relationship were futile.

As we noted earlier, only one of the alleged acts of domestic violence took place after enactment of the amendment permitting complaints arising out of a dating relationship. This act occurred on the night of August 31, 1994. While driving home, plaintiff noticed what appeared to be Saab headlights coming from the opposite direction. Plaintiff became concerned because she had earlier seen defendant driving a Saab. Plaintiff's fears were further heightened when, peering in her rearview mirror, she noticed the Saab make a U-turn and pull behind her automobile. Through the rearview mirror, plaintiff was able to observe defendant driving the Saab. As plaintiff accelerated, the Saab closely followed with its horn honking and its high beams flashing. According to plaintiff, the two automobiles reached speeds approaching eighty-five miles an hour. Ultimately, plaintiff drove her car to the police station, thereby effectively ending the chase.

Defendant denied his involvement in the August 31 incident. He claimed that the Saab was at a repair shop that night and that he, his brother and a friend were attending a nightclub in New York City. To corroborate his account, defendant introduced telephone records which disclosed a telephone call from the nightclub to his home at 4:12 a.m. on September 1, 1994.

The trial Judge rendered a series of oral and written opinions in which he made specific findings that plaintiff's testimony was credible and that defendant's account was untrustworthy. The Judge determined that plaintiff posed for the second set of photographs out of fear that defendant would show the first set to her parents and that defendant committed a sexual assault by coercing plaintiff to engage in fellatio. See N.J.S.A. 2C:13-5a; N.J.S.A. 2C:14-2c. The Judge also found that defendant committed acts of stalking, see N.J.S.A. 2C:12-10, and harassment, see N.J.S.A. 2C:33-4, culminating in the automobile chase of August 31, 1994. The Judge applied retroactively the amendment protecting victims from violent acts arising out of a dating relationship and assessed punitive damages for each episode of stalking and harassment. The punitive damages totalled $5,875. The Judge also awarded the plaintiff compensatory damages and attorneys' fees totalling $14,891. The Judge issued a restraining order prohibiting defendant from "displaying, assigning, . . . publishing, printing, promoting, advertising [or] ...

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